HERSCHAFT v. NEW YORK CITY CAMPAIGN FINANCE BD.

January 18, 2001

ALLEN HERSCHAFT, PLAINTIFF,V.THE NEW YORK CITY CAMPAIGN FINANCE BOARD, DEFENDANT.

The opinion of the court was delivered by: Amon, District Judge.

MEMORANDUM AND ORDER

The Court denied pro se plaintiff Allen Herschaft's motion
for a preliminary injunction and dismissed his amended complaint
in a Memorandum and Order ("Order") dated December 8, 2000. In
the amended complaint, plaintiff challenged the
constitutionality of Section 3-03(c)(4)(i) of Title 52 of the
Rules of the City of New York and Section 3-703(6) of New York
City's Administrative Code and Charter, which require that
candidates for City offices seeking public matching funds comply
with certain disclosure obligations. Plaintiff now moves for
reconsideration pursuant to Fed.R.Civ.P. 59(e), or for relief
from judgment pursuant to Fed.R.Civ.P. 60.*fn1

Plaintiff does not present any circumstances that persuade the
Court to amend its prior Order of December 8, 2000. In his
submissions, plaintiff reargues issues already addressed by this
Court, presents new evidence and legal authority for the Court
to consider, and asserts an equal protection challenge for the
first time. These contentions are for the most part improper on
a motion to reconsider and are in any event unavailing.

First, plaintiff argues that the Court was mistaken in stating
in its Order that plaintiff "did not contend in his papers that
harassment of his contributors was a concern in soliciting their
addresses." (Order at 10-11.) However, plaintiff does not refer
the Court to pages in either his amended complaint, Memorandum
for Motion of Preliminary Injunction, or Reply Brief to
Defendant's Memo in Opposition where he makes such allegations,
and the Court, having reviewed plaintiffs papers once more, is
unable to find any.*fn2

Instead, plaintiff refers the Court to the letter he sent to
defendant New York City Campaign Finance Board on May 9, 2000,
which states that the challenged disclosure requirements are
"oppressive, constitute harassment and would be a burden or
strain on small scale contributors. . . ." (Affidavit of Nicole
A. Gordon, sworn to Oct. 4, 2000, Ex. C at 2-3.) This statement
plainly does not allude to the possible harassment of plaintiffs
supporters by third parties.

Plaintiff also refers the Court to his affidavit seeking an
Order to Show Cause submitted on June 26, 2000 with his original
complaint. There, plaintiff states:

Furthermore, the plaintiff has a likelihood of
success on the merits because the Supreme Court has
held in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612,
46 L.Ed.2d 659 (1976) that if there were evidence of
impairments of First Amendment rights such that for
example, there was a reasonable probability that
harassment or threats to contributors resulted from
the compelled disclosures then the Court would review
the constitutionality of the disclosure requirement
with strict scrutiny 424 U.S. at 75-83, 96 S.Ct. at
660-66. Plaintiff avers that the compelled campaign
disclosures that the defendant is requiring of the
plaintiff to produce in cases involving contribution
amounts that are under $10, violate the first
amendment rights of the contributors who wish to
donate to the Plaintiffs campaign in that said
disclosures interfere with their 1st Amendment right
of Freedom of Religion.*fn3

(Affidavit of Allen Herschaft, sworn to June 26, 2000, at 1-2.)
While plaintiff certainly mentions the Supreme Court's ruling in
Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659
(1976), that minor party or independent candidates might be
exempted from the provisions of the Federal Election Campaign
Act of 1971 ("FECA") if they can show that the compelled
disclosure of their contributors' names would subject those
contributors to threats, harassment, or reprisals, there is no
indication from plaintiffs affidavit that he was relying on such
exemption in this case. Rather, plaintiffs affidavit explicitly
states that he was instead relying on a free exercise challenge
to the New York City campaign disclosure laws.

Regardless, plaintiffs argument is insignificant because the
Court considered and rejected his generalized allegations of
potential harassment in its prior Order. Even considering the
new evidence that plaintiff presents, which was improperly
submitted and could be disregarded out of hand,*fn4 the Court
remains of the opinion that plaintiffs assertion that the
disclosure of his contributors' names and addresses will subject
them to harassment is "highly speculative." Buckley, 424 U.S.
at 70, 96 S.Ct. 612. Although the recent acts of violence
against Jews in New York City are deplorable, there is simply no
basis thereupon to conclude that contributors to plaintiffs
campaign for City Council will be targeted for threats or
harassment. The letters submitted together with plaintiffs
motion are likewise not persuasive on this point. The unadorned
opinions of two individuals, Rabbi Chaim A. Stamm and Bernard
Zakarin, that Orthodox Jews would be discouraged from
contributing to plaintiffs campaign if they were required to
disclose their names or addresses for fear of reprisals, are not
sufficient to permit this Court to conclude that there is a
reasonable probability that plaintiffs supporters would in fact
be subject to threats or harassment if their names and addresses
were publicly available.*fn5

Second, plaintiff urges the Court to reconsider several of his
claims that the Court addressed thoroughly in its prior Order. A
motion for reconsideration, however, does not provide a forum
for the nonprevailing party to reargue issues that the Court has
already decided. See, e.g., United States ex rel. Mikes v.
Straus, 84 F. Supp.2d 427, 441 (S.D.N.Y. 1999); University of
California Press v. G.A. Insur. Co. of New York, CV-94-4950,
1996 WL
497143, at *2 (E.D.N.Y. Aug. 26, 1996), aff'd, 116 F.3d 466,
1997 WL 340375 (2nd Cir. 1997). A Rule 59(e) motion is not a
substitute for an appeal. See Morales v. Quintiles
Transnational Corp., 25 F. Supp.2d 369, 372 (S.D.N.Y. 1998).
Since plaintiff does not contend that the Court overlooked any
controlling law that was presented to it, the Court will not
disturb its conclusions that the challenged provisions survive
the exacting scrutiny standard established in Buckley for
campaign disclosure rules that potentially infringe on the First
Amendment freedom of association, and that they do not implicate
either the First Amendment's privilege of free speech or any
Fourth Amendment right to privacy.*fn6

Third, plaintiff raises for the first time in his reply brief
a new argument, asserting that the challenged disclosure
provisions violate the Fourteenth Amendment's guarantee of equal
protection because it unfairly burdens Orthodox Jews. Plaintiff
is not permitted to raise such a new claim in a Rule 59(e)
motion, and the Court will disregard it. Building Indus. Fund
v. Local Union No. 3, Int'l Bhd. of Elec. Workers, AFL-CIO,
992 F. Supp. 162, 186 (E.D.N.Y. 1996). Rule 59(e) "review is narrow
and applies only to already-considered issues; new arguments and
issues are not be considered." Morales, 25 F. Supp.2d at 372.
The Court notes, however, that even were it to consider the
argument, it is plainly frivolous. The disclosure laws at issue
do not expressly distinguish between candidates on the basis of
religion, and there is no allegation that the laws are only
enforced against candidates who are Orthodox Jews or that the
laws were motivated by discriminatory animus against Orthodox
Jews. Accordingly, the provisions do not violate the equal
protection clause. See Hayden v. County of Nassau,
180 F.3d 42, 48 (2d Cir. 1999).

Plaintiff does not present any exceptional circumstances here;
for the most part, he simply tries improperly to reargue issues
that the Court has already decided or to advance new arguments
attacking the constitutionality of the challenged disclosure
provisions. The fact that plaintiff disagrees with the ...

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